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We posted on two state efforts in Texas and North Carolina to enact election laws that would have required federal preclearance before last week's ruling in Shelby County v. Holder. In Texas, the laws were denied preclearance by a three-judge federal court; those rulings, Texas v. Holder and Texas v. United States, were vacated by the Supreme Court two days after Shelby County came down, making way for the laws to go on the books.

I posted at the ACSblog on what this all means, and how it illustrates the stunning impact of Shelby County. In short, the federal courts in the two Texas cases held that Texas's proposed voter-ID law and its redistricting plan for congressional and state legislative districts would likely have a retrogressive effect on the voting rights of racial minorities. (One of those courts also found that Texas drew its redistricting map with a discriminatory purpose.) Now that those cases are vacated, and now that the Texas AG has ordered the laws enforced, we'll soon get a fuller picture of the impact of Shelby County.

(State Democrats introduced a competing measure, S 708, the Ella Baker Voter Empowerment Act, that would open up voting in the state.)

North Carolina was a partially covered jurisdiction under Section 4 (before Shelby County struck Section 4): 40 out of 100 of its counties were covered. That meant that those counties had to gain federal preclearance under Section 5 of the VRA before making any changes to their election laws--and to show that their proposed changes wouldn't produce a racially retrogressive effect.

But now that Section 4 is off the books, those counties don't need to gain federal preclearance. And the state can much more easily change its election laws--and enact bills like SB 721.

In their 2010 law review article, Judicial Duty and the Supreme Court’s Cult of Celebrity,available on ssrn, Craig Lerner and Nelson Lund observed that there was a huge dissonance between the personality portrayed in confirmation hearings and the outsized personality on the bench and suggested four Congressional reforms. Their first proposal:

Congress
should require that all Supreme Court opinions, including concurrences
and dissents, be issued anonymously. This should lead to fewer
self-indulgent separate opinions, more coherent and judicious majority
opinions, and more reason for future Justices to treat the resulting
precedents respectfully.

They contend, "[t]ruly unpretentious judicial servants should have no need to put their personal stamp
on the law, and the practice of doing so has contributed to unnecessary and unhealthy flamboyance in the Court’s work."

Their article contains an excellent discussion of the problem of "celebrity," but little discussion of the constitutionality of a Congressional mandate for anonymity or for their other proposals. Certainly, should the anonymity proposal be enacted, there would be a constitutional separation of powers challenge. Although who would have standing? And what about recusal?

Shelby County v. Holder, decided Tuesday, struck down a key part of the Voting Rights Act (the part requiring certain states with a history of racial discrimination in voting to obtain federal permission in advance to change their voting procedures--called "preclearance") as violating the "fundamental principle of equal sovereignty" of the states. This is a principle of constitutional law of which I had never heard--for the excellent reason that . . . there is no such principle.

So where does this principle come from? It comes from Chief Justice Roberts's majority opinion in Northwest Austin Municipal Utility District Number One v. Holder, the 2009 case holding that NAMUDNO can bail out of preclearance and thus dodging the constitutional question whether Congress had authority to reauthorize preclearance in 2006.

In NAMUDNO, as traced in the pieces linked above, Chief Justice Roberts worried about the "federalism costs" of preclearance, including its intrusion on equal state sovereignty. But he failed to mention that the principle of equal state sovereignty previously applied only to the conditions upon which states were admitted to the Union, and not to day-to-day treatment of the states by Congress, much less congressional treatment of the states under the enforcement power in the Reconstruction Amendments. Justices Stevens, Souter, Ginsburg, and Breyer all signed on to that opinion.

Chief Justice Roberts picked up that NAMUDNO language in Shelby County and ran with it. He also poked Justices Ginsburg and Breyer for signing on to NAMUDNO but dissenting in Shelby County (in part because they said that there is no general doctrine of equal state sovereignty).

This is but one example of the way that Chief Justice Roberts has slowly pulled the Court to the right, argues Adam Liptak in today's NYT--an article well worth reading, whether you think the argument is too strong, too weak, or just right. It involves a slow, patient approach to changing the doctrine--by first writing relatively benign opinions (and gaining the votes of the more liberal Justices) but that nevertheless include potentially explosive language (like the reference in NAMUDNO to the doctrine of equal state sovereignty), then later citing that language (and the fact that the more liberal members signed on) in much, much bigger cases (like Shelby County).

Congressional authority under the Reconstruction Amendments is vast, and Congress is the principal enforcer of equal voting rights under the Constitution. The Court should defer to Congress in evaluating its enforcement mechanisms--applying rational basis review, under Chief Justice Marshall's famous formulation in McCulloch v. Maryland--and the Court should apply that test even more deferentially for a re-authorization of an act, like the VRA.

Congress more than did its job in compiling a legislative record of vote discrimination in the jurisdictions covered by Section 4. Justice Ginsburg carefully recounted this record and some particularly egregious violations in her dissent.

Shelby County, Alabama, of all jurisdictions, had no business bringing this case. Shelby County lodged a facial challenge to Sections 4 and 5, yet Shelby County itself is a clear violator--and should be in any coverage formula that Congress might devise. That means that the coverage formula has at least one valid application--to Alabama--and cannot be struck in a facial challenge. The VRA's severability provision only buttresses this point.

"Equal state sovereignty," the backdrop for the Court's ruling, applies only to the conditions on states for admission to the Union, not differential treatment outside that context. Justice Ginsburg understates: "Today's unprecedented extension of the equal sovereignty principle outside its proper domain--the admission of new States--is capable of much mischief."

Preclearance, with the now-struck coverage formula, itself is responsible for the improvements that the Court cites in voting practices. Without it, we face retrogression--that is, falling back into patterns of racial discrimination in the vote. "In the Court's view, the very success of Section 5 of the Voting Rights Act demands its dormancy."

While the Supreme Court today struck only the coverage formula for the preclearance provision of the Voting Rights Act, Justice Thomas, concurring alone, would have ruled Section 5 preclearance itself unconstitutional. That's because, according to Justice Thomas, "[t]oday, our Nation has changed." He points to voter turnout and registration rates, which "now approach parity," and the "rare" "[b]latantly discriminatory evasions of federal decrees."

Against these improvements, Justice Thomas argues that Section 5 itself exceeded congressional authority, especially after Congress changed and increased the preclearance requirement in reauthorizing the VRA in 2006.

Justice Thomas wrote just for himself; he garnered no other votes. Still, his ominous conclusion rings true, given the likely inability of Congress to re-write a coverage formula that would satisfy this Court:

While the Court claims to "issue no holding on Section 5 itself," its own opinion compellingly demonstrates that Congress has failed to justify "'current burdens'" with a record demonstrating "'current needs.'" By leaving the inevitable conclusion unstated, the Court needlessly prolongs the demise of that provision.

In the wake of today's ruling in Shelby County v. Holder, striking the coverage formula for preclearance under the Voting Rights Act, the ball's in Congress's court. While the Supreme Court held that the coverage formula in Section 4 is outdated and unconstitutional, it did not touch Section 5 preclearance, and it did not touch Section 2's ban on racial discrimination. (Our posts are here, here, and here. Our oral argument review is here.)

So, Section 2 case-by-case litigation remains in play. Litigants can still sue jurisdictions for racial discrimination in voting on a case-by-case basis. But the problem with this case-by-case approach, as Congress recognized when it reauthorized the VRA in 2006, is that case-by-case litigation really can't catch up with the myriad and clever, under-the-radar ways that some states and jurisdictions now discriminate in the vote--the so-called "second generation" practices. (You can sue your state for a discriminatory vote practice in one election, but by the time the courts rule, the election is over.) Some of these were on full display in the 2012 election.

Preclearance always provided a back-stop for this problem--that was its principal value. Preclearance required covered jurisdictions to gain permission before making any changes to their voting laws, thus shifting the usual burden to the states to show a lack of discrimination. It applied, under the now-struck Section 4, to jurisdictions that had a particularly ugly history of race discrimination in the vote.

Today's ruling strikes the coverage formula in Section 4, but it doesn't strike Section 5 preclearance. That means that preclearance remains on the books, even if it lacks a coverage formula--and therefore preclearance now sits dormant.

That puts the ball back in Congress's court to re-write the Section 4 formula, to give life to preclearance again. Whether Congress can actually do that is a different question. While the VRA passed in 2006 by overwhelming numbers, the inertia was behind the coverage formula then. (Remember that the same basic formula had been around, doing its job, in 2006.) Now Congress will have to start from scratch--to write a formula that calls out certain states and jurisdictions and subjects them to the burdensome process of preclearance. It seems unlikely that this Congress will be able and willing to do that.

If Congress doesn't respond with a valid coverage formula, Section 5 preclearance will remain on the books, but dormant. That will leave Section 2 litigation alone to fight discrimination in the vote. As we've seen, and as Congress found, that will almost surely be insufficient.

In short, Chief Justice Roberts wrote that the Section 4 coverage formula was out of date. He took issue with Congress's "reverse engineering"--that is, figuring out which states should be covered, and working backwards to design a formula that covered them--when it reauthorized the VRA in 2006, because, he wrote, that formula was based on data compiled 40 years ago. He wrote that the coverage formula was rational then; it is not now, 40 years later, with substantially changed circumstances.

Chief Justices Roberts acknowledged that Congress compiled voluminous data demonstrating racial discrimination, but he wrote that the coverage formula reauthorized in 2006 wasn't based on that data. Instead, it was based on 40-year-old data, from the time Congress originally enacted the VRA.

Because the Court saw preclearance as such a dramatic action--shifting the usual burden on the plaintiff to show discrimination to a covered state or jurisdiction to show lack of discriminatory effect in a proposed change in their voting laws, and thus infringing on the "equal sovereignty of the states"--it held the coverage formula to a higher standard. The Court said that the formula, based on 40-year-old data, was simply out of date.

Still, the Court said that Congress could rewrite the formula. This seems a far-fetched possibility, given the politics and divisions in Congress. If it doesn't happen, preclearance under Section 5 remains on the books, but it'll have no effect, because there will be no jurisdictions covered.

Without preclearance, the VRA loses its crown jewel. Section 2 case-by-case litigation against offending jurisdictions remains in play, but, as Congress found, case-by-case litigation has a real hard time keeping up with the clever, under-the-radar ways that some states and jurisdictions use their voting laws to discriminate in the vote.

In striking the coverage formula for the preclearance provision in the Voting Rights Act today, Chief Justice Roberts wrote a good three-plus pages on state sovereignty--and particularly the doctrine of "equal sovereignty." According to the Chief, the coverage formula, which the majority held outdated, violated this principle. More: He wrote that this principle applies beyond the admission of states to the Union; it applies here. The Chief planted this time-bomb in Northwest Austin; it's now coming home to roost.

Here's part of what he said:

Not only do States retain sovereignty under the Constitution, there is also a "fundamental principle of equal sovereignty" among the States. [Northwest Austin (citing United States v. Louisiana); Lessee of Pollard v. Hagan; Texas v. White.] Over a hundred years ago, this Court explained that our Nation "was and is a union of States, equal in power, dignity and authority." [Coyle v. Smith.] Indeed, "the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized." Coyle concerned the admission of new States, and Katzenbach rejected the notion that the principle operated as a bar on differential treatment outside that context. At the same time, as we made clear in Northwest Austin, the fundamental principle of equal sovereignty remains highly pertinent in assessing subsequent disparate treeatment of States.

The Supreme Court today in Shelby County v. Holder ruled that Section 4 of the Voting Rights Act is unconstitutional. Section 4 provides the coverage formula for Section 5, the preclearance provision. The ruling does not stirke preclearance (in Section 5); it only strikes the coverage formula (in Section 4). Moreover, the ruling says that the coverage formula was rational in 1966, just not today. The case leaves in place Section 2, the ban on racial discrimination in voting.

Chief Justice Roberts wrote the majority opinion, joined by Justices Scalia, Kennedy, Thomas, and Alito; Justice Ginsburg wrote the dissent, joined by Justices Breyer, Sotomayor, and Kagan.

The Court said that Congress can re-write Section 4. If Congress cannot do that, though, or if it can only do it in a way that this Court would strike, Section 5 preclearance will have no practical effect (even if it remains on the books). That is: with no valid coverage formula for preclearance, preclearance doesn't happen.

If so, the ruling effectively strikes the preclearance requirement. And if so, the VRA remedy for racial discrimination in voting is Section 2--the ban on racial discrimination in voting, enforced by case-by-case litigation against offending jurisdictions. (Preclearance, on the other hand, required historically offending jurisdictions to justify in advance any changes to their voting laws.) The failure of case-by-case litigation to keep up with so-called "second generation" voting discrimination is one key reason why Congress reauthorized Sections 4 and 5.

So, the long-and-short of it is this: If Congress can't re-write the coverage formula in Section 4 (which seems likely, given the politics in Congress), then Section 5 preclearance is of no effect. If so, the VRA has lost a significant, singular tool in fighting race discrimination in voting. We will continue to see case-by-case litigation against offending jurisdictions under Section 2, but if history is any guide, that litigation will never catch up with the many and clever ways that jurisdictions use to discriminate in voting.

This is a big loss for voting rights, even as it frees up covered jurisdictions from a burdensome preclearance requirement.

In response to Monday's ruling in Arizona v. InterTribal Council of Arizona, Inc., striking Arizona's requirement that voters show proof of citizenship above and beyond the oath of citizenship on the standard federal voter registration form, there's a debate about whether the case is a pyrrhic victory for the federal government. Our most recent post on the case, with links to earlier posts, is here.

On one side, Mary Lederman argued over at SCOTUSblog that the case, for all its talk of federal supremacy over how federal elections are held, probably curtails federal authority over who may vote in them. That's because Justice Scalia, writing for the Court, carefully reserved the power to determine who may vote in federal elections to the states. Lederman seized on Justice Scalia's line that the Elections Clause "empowers Congress to regulate how federal elections are held, but not who may vote in them" and argued that this principle puts in jeopardy current and possible future federal legislation requiring states to register certain persons to vote. For example, he argued that the ruling threatens the Uniformed and Overseas Citizens Absentee Voting Act, UOCAVA, which requires a state to register for federal electiosn any person who resides outside the United States but would otherwise be qualified to vote in that state; any congressional restriction on state felon disenfrachisement laws; and even federal law upheld under Oregon v. Mitchell. Rick Hasen made a similar point at The Daily Beast, followed up with a post on his own Election Law Blog.

On the other side, David Gans over at the Text and History blog at the Constitutional Accountability Center, argued that Lederman's argument "misses the enduring significance of Justice Scalia's sweeping reaffirmation that the Constitution gives Congress very broad powers to protect the right to vote in federal elections . . . ." Gans and others seized on Justice Scalia's repeated and very strong language affirming federal authority under the Elections Clause--its "paramount power," without a presumption against preemption--to set the rules of the "Times, Places, and Manner" of congressional elections.

So who's right?

Both, it turns out--with an important caveat. The ruling gives Congress broad authority under the Elections Clause to regulate the "Times, Places, and Manner" of congressional elections, including prescribing a federal form, using an oath on that form as evidence of citizenship, and requiring states to petition federal authorities (the EAC) to add a proof-of-citizenship requirement on that form (or to sue to get the EAC to add the requirement). That's the core holding of the case--that the NVRA, with the prescribed federal form, including the oath, is a valid regulation of the "Times, Places, and Manner" of congressional elections that preempts contrary state law.

But the NVRA and the federal form spill over into the state-controlled power to determine who gets to vote, because they regulate the manner of determining an important qualification for voters, citizenship. The Court said that to the extent that a federal law spills over and regulates voter qualification like this, the states must have an opportunity to petition federal authorities and ultimately to sue (under the Administrative Procedures Act) to enforce their own state voter eligibility requirements.

So even under the Elections Clause, the case stands for vast federal authority--authority to set the "Times, Places, and Manner" of congressional election in a way that absolutely preempts state law, and more: to set those standards even when they spill over into regulation of who gets to vote, so long as the states have an opportunity--under a very loose standard--to preserve their power to set voter qualifications through administrative petitioning and APA action. (Note that this administrative petitioning, by the Court's own reckoning, is informal and casual. Note further that APA review is deferential. Between the two, the principle puts the inertia behind federal regulation that spills over into regulation of voter qualification.)

While the Court articulated these rules in the case--that is, that the feds have the absolute power over how to vote, while the states have the power over who gets to vote--even perhaps more clearly than it has in the past, it's not obvious that this breaks any new ground. In particular, it's not obvious that it breaks any new ground reducing the power of the federal government or enhancing the powers of the states. Indeed, if anything, the core holding of the case only underscores the vast power of the federal government at the expense of the states. (While Justice Scalia's line dividing power between the feds and the states may eventually prove to be a "time bomb" (Hasen's phrase), the principal, driving holding of the case reaffirms federal authority.)

So here's the caveat: the Court said all this only with respect to the Elections Clause, but of course made no ruling on any other federal authority to regulate voter qualifications. Thus the Court left in place vast federal power under the Fourteenth and Fifteenth Amendments, and left untouched the constitutional rights to travel and to vote. Those authorities and rights, and others, might well support federal authority to enact the UOCAVA and maybe even to restrict certain state felon disenfrachisement laws. If so, Monday's ruling doesn't do anything to those actual and potential federal laws.

Moreoer, Monday's ruling does nothing to the federal laws upheld under Oregon v. Mitchell, or otherwise to undermine whatever holdings came out of that case. (Justice Scalia's footnote 8 does nothing to the vitality or legitimacy of Mitchell, say what you will about the footnote or about Mitchell itself.) Lederman argues that those laws might not withstand scrutiny under the Court's current approach to congressional enforcement power under the Reconstruction Amendments. But, if so, that's a function of City of Boerne, not Monday's ruling. Moreover, some or all of the laws upheld under Mitchell might well be upheld under different authorities. As we know, the Court itself split sharply on the sources of authority in that case, suggesting that those laws might enjoy support under other authorities, not subject to the Elections Clause constraint that states have the power to determine who gets to vote.

In short, Monday's ruling is a clear victory for federal authority under the Elections Clause, with a reservation of qualified state authority to determine who gets to vote in congressional elections even when Congress regulates the "Times, Places, and Manner" of congressional elections in a way that spills over into voter qualifications. (Why "qualified state authority"? Because the Court upheld a federal law that set a standard for voter eligibility, based on the oath on the federal form, so long as the states can petition the EAC and bring an action to court to supplement the oath if they can show that the oath is insufficient. This putting-the-burden-on-the-state when the federal government prescribes a way to determine eligibility is a thumb on the scale in favor of federal power. At the very least, it's an extremely unusual way to preserve and protect state power.) But the ruling does nothing to other constitutional powers that Congress might use to validly enact federal law, and to preempt state law, regarding voter qualifications.

The Supreme Court ruled today in Arizona v. InterTribal Council of Arizona, Inc. that the federal requirement under the National Voter Registration Act, NVRA, that the states "accept and use" an approved and uniform federal form for registering voters preempted Arizona's requirement that voters present evidence of citizenship at registration. The ruling strikes Arizona's proof-of-citizenship requirement for users of the federal form, but also invites Arizona to try to get the federal Election Assistance Commission to provide state-specific instructions requiring proof of citizenship through an administrative process. We posted on the case earlier here; our argument preview is here; our argument review is here.

The ruling is a strong statement of federal authority over the states when Congress acts pursuant to its Elections Clause power. But the case doesn't change the basic federalism framework that the Court uses in its ordinary preemption cases (under the Supremacy Clause)--including its presumption against preemption in those cases--and it of course says nothing about the likely direction the Court will take in Shelby County, the pending decision on the challenge to Section 5 of the Voting Rights Act.

Justice Scalia wrote for the Court, joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Kennedy, writing separately, concurred in part and concurred in the judgment.

The case arose out of Arizona's Proposition 200, a ballot initiative that required county recorders to reject any voter registration application not accompanied by a proof of citizenship. The problem is that the NVRA requires states to "accept and use" a uniform federal form designed by the Election Assistance Commission; and the federal form only requires an applicant to attest, under penalty of perjury, that he or she meets the state voting requirements (including citizenship). (The EAC rejected Arizona's request to include a state-specific instruction on the federal form that applicants must provide proof of citizenship.)

So the question in InterTribal was whether the NVRA requirement that states "accept and use" the federal form preempted Arizona's proof-of-citizenship requirement. The Court ruled that it did.

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the places of chusing Senators.

The Court recognized that the Clause was designed to give Congress certain authority over federal elections in order to ensure that states wouldn't undercut the federal government by refusing to provide for the election of representatives to Congress. Thus, the preemptive power of the Clause, even if a "default," is sweeping:

In practice, the Clause functions as "a default provision; it invests the States with responsibility for the mechanics of congressional elections, but only so far as Congress declines to pre-empt state legislative choices." . . . The power of Congress over the "Times, Places and Manner" of congressional elections "is paramount, and may be exercised at any time, and to any extent which it deems expedient; and so far as it is exercised, and no farther, the regulations effected supercede those of the State which are inconsistent therewith."

Op. at 5-6 (citations omitted). More, the Court rejected Arizona's argument that there is a presumption against preemption in the Elections Clause context. It said that when Congress regulates under the Elections Clause, "it necessarily displaces some element of a pre-existing legal regime erected by the States." Op. at 11 (emphasis in original). "Moreover, the federalism concerns underlying the presumption in the Supremacy Clause context are somewhat weaker here. Unlike the States' 'historic police powers,' . . . the States' role in regulating congressional elections--while weighty and worthy of respect--has always existed subject to the express qualification that it 'terminates according to federal law.'" Op. at 12 (citations omitted).

Thus, the Court said that there was no reason not to give the congressional requirement that states "accept and use" the federal form its plain meaning. And that meaning prohibits the states from adding a proof-of-citizenship requirement over and above what the federal form already requires.

The Court noted that the "alternative means of enforcing its constitutional power to determine voting qualifications"--petitioning the EAC to alter the federal form, and challenging the EAC's rejection of a petition under the Administrative Procedures Act--"remains open to Arizona here." Op. at 16.

Justice Kennedy concurred, but wrote separately to take issue with the Court's creation of "a hierarchy of federal powers so that some statutes pre-empting state law must be interpreted by different rules than others, all depending upon which power Congress has exercised." He would have applied a presumption against preemption in this case--and any case involving federal legislation under the Elections Clause--but thought that that presumption was satisfied here.

Justice Thomas dissented, arguing that the Voter Qualifications Clause and the Seventeenth Amendment reserve the power to the states to determine qualifications of voters in federal elections. The Voter Qualifications Clause, Article I, Sec. 2, cl 1., says that "the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature" in elections for the federal House of Representatives. The Seventeenth Amendment contains similar language for elections for the Senate. Because both parties' interpretations of the "accept and use" language were plausible, according to Justice Thomas, these other provisions tilt the scale in favor of Arizona--and state determination of voter qualifications.

Finally, Justice Alito dissented, arguing that the NVRA language is ambiguous, but "their best reading is that the States need not treat the federal form as a complete voter registration application."

The 2009 sharply divided Supreme Court opinion in Caperton v. Massey Coal is the centerpiece of the new book, The Price of Justice: A True Story of Greed and Corruption by Laurence Leamer. Recall that the Court in Caperton ruled that due process required judicial recusal of a West Virginia Supreme Court of Appeals judge, Justice Brent Benjamin, in a case involving Massey Coal because of the contributions by Massey Coal to Justice Benjamin's campaign.

the riveting and
compulsively readable tale of the epic battle between Don Blankenship,
the man who essentially ran the West Virginia coal industry through his
company Massey Energy, and two seemingly ordinary attorneys: Bruce
Stanley and David Fawcett. The centerpiece of the story is a West
Virginia mine owner whom Blankenship purposefully bankrupted, and on
whose behalf Stanley and Fawcett won (in 2002) a $50 million dollar
verdict that is still unpaid. In hopes of having the ruling overturned
by the West Virginia Supreme Court, Blankenship sought to “buy” a seat
on the court by contributing over $3 million to the successful campaign
of a conservative judicial candidate. However, the U.S. Supreme Court
eventually found that Blankenship’s contributions were too much to allow
the new West Virginia justice to hear the case. Leamer has produced a
Shakespearean tale of greed, corporate irresponsibility, and personal
hubris on the one hand, and idealism, commitment to justice, and
personal sacrifice on the other. Blankenship is a villain for all time,
and Stanley and Fawcett are lawyers who bring honor to their profession.

A good addition to that summer reading list for anyone interested in constitutional law and anyone who might like a reminder that lawyers can, indeed, be heroic.

Speaking to the Chicago Tribune editorial board, retired Justice Sandra Day O'Connor reportedly stated that the Court took the case of Bush v. Gore

"and decided it at a time when it was still a big
election issue. Maybe the court should have said, 'We're not going to
take it, goodbye.'"

The case, she said, "stirred up the public" and "gave the court a less-than-perfect reputation."

"Obviously
the court did reach a decision and thought it had to reach a decision,"
she said. "It turned out the election authorities in Florida hadn't
done a real good job there and kind of messed it up. And probably the
Supreme Court added to the problem at the end of the day."

This falls far short of a statement that O'Connor regretted her decision in the infamous Bush v. Gore, as some have concluded.

President George W. Bush speaks via phone to Associate Supreme Court Justice Sandra Day O'Connor Friday, July 1, 2005, shortly after she submitted her letter of resignation citing personal reasons. The letter sits on the desk. White House photo by Paul Morse.

Even as we await the United States Supreme Court's opinion on the constitutionality of a university's affirmative action plan in Fisher v. University of Texas argued October 10, it has become clear that Fisher will not be the Court's last affirmative action case.

The en banc Sixth Circuit was seriously fractured, but none of the opinions considered the Court's affirmative action cases of Grutter and Gratz (or the pending case of Fisher). Instead, the relevant doctrine was the so-called "political process" aspect of the Equal Protection Clause which asks whether a majority may vote to amend its constitution to limit the rights of a minority to seek relief?
This underlying problem is similar to some of the arguments in the Proposition 8 case - - - Hollingsworth v. Perry - - - to be argued before the Supreme Court tomorrow, March 26, and certainly resonates with the Ninth Circuit's reasoning in Perry finding that Prop 8 was unconstitutional.

In the case of Michigan's Prop 2, the Sixth Circuit majority found it troublesome that only as to racial classifications in university admissions would a person seeking to change policy have to amend the state constitution, as contrasted to other classifications that could be changed by various other means, including simply persuading an admissions committee.

As to what the Court's grant of certiorari in Coalition to Save Affirmative Action might mean for Fisher, reading the "tea leaves" is difficult. As we observed when the Sixth Circuit decided Coalition to Save Affirmative Action, a very broad approach in Fisher - - - such as a declaration thatall racial affirmative action policies in education were
per se unconstitutional - - - would seriously undermine the rationale of the Sixth Circuit opinion. However, a grant of certiorari in Coalition to Save Affirmative Action does not mean that Fisher will be narrow or that it will uphold the University of Texas' affirmative action plan.

And one additional "wrinkle": Justice Kagan is recused in Coalition to Save Affirmative Action.

The controversies surrounding the Court's impending decision in Shelby County v. Holder regarding the constitutionality of the Voting Rights Act's "preclearance" provision (section 5) have been exacerbated by Justice Scalia's remarks about "racial entitlement." Seemingly, at issue for the Justices - - - originalist and otherwise - - - is the meaning of the enforcement clauses of the Fifteenth and Fourteenth Amendments: "The Congress shall have power to enforce this article by appropriate legislation."

In a provocative new article, A Structural Theory of Elections, available in draft on ssrn, ConLawProf Franita Tolson (pictured) seeks to redirect our attention to section 2 of the Fourteenth Amendment:

Representatives shall be apportioned among the several states according
to their respective numbers, counting the whole number of persons in
each state, excluding Indians not taxed. But when the right to vote at
any election for the choice of electors for President and Vice President
of the United States, Representatives in Congress, the executive and
judicial officers of a state, or the members of the legislature thereof,
is denied to any of the male inhabitants of such state, being twenty-one years of age
and citizens of the United States, or in any way abridged, except for
participation in rebellion, or other crime, the basis of representation
therein shall be reduced in the proportion which the number of such male
citizens shall bear to the whole number of male citizens twenty-one
years of age in such state.

Tolson's attention is not to the language that first introduced gender into the Constitution ("male inhabitants") or to the change in counting those male inhabitants ("excluding Indians") or to the subsequent change in voting age, but to the broad ability of Congress to change the apportionment for voting rights violations. She argues that this previously under-emphasized language makes the Court's "congruence and proportionality" standard for evaluating Congressional power inapplicable in the voting and election contexts.

Tolson's article is a closely reasoned and excellently researched argument for the broad enforcement powers of Congress intended by the Framers of the Fourteenth and Fifteenth Amendments. She ultimately contends "that requiring preclearance of all electoral changes instituted
by select jurisdictions under section 5 of the Voting Rights Act is actually
a lesser penalty than reduced representation under section 2, and is thus
consistent with Congress’s broad authority to regulate voting and
elections under the Fourteenth and Fifteenth Amendments."

Tolson's article is certainly worth a read for anyone considering the issues at the heart of Shelby County v. Holder.

Years from now, when the Supreme Court has come to its senses, justices
then sitting will look back on the spring of 2013 in bewilderment. On
what basis, they will wonder, did five conservative justices, professed
believers in judicial restraint, reach out to grab the authority that
the framers of the post-Civil War 14th and 15th Amendments had vested in
Congress nearly a century and a half earlier “to enforce, by
appropriate legislation” the right to equal protection and the right to
vote.

Greenhouse admits she is forecasting the outcome, but her column makes that outcome seem less palatable.

California's Election Code, sections 8066 and 8451 require the persons who gather the signatures necessary to place a name on the ballot in an election to be residents of the political subdivision or district in which the voting is to occur. California uses the term "circulators" for the person who gathers the signatures and the term "nomination paper" for the document with the signatures, but the general scheme is a familiar one.

Indeed, recall the controversy in January 2012 over a First Amendment challenge by Republican candidates for President to the Virginia election provision that mandated that the petition be circulated by a registered
(or eligible) voter in Virginia and the circulator must sign the
petition in the presence of a notary. The Fourth Circuit rejected the challengers arguments on the basis of laches. Part of the candidates' argument for waiting was that they did not have standing until later in the process.

And the standing concern is a serious one.

But the Ninth Circuit's opinion in Libertarian Party of Los Angeles County v. Bowen today - - - reversing the district judge - - - held that a "concrete plan" to use circulators who do not live in the voting district, coupled with the clear intent of enforcement by California Secretary of State Bowen, is sufficient to confer standing.

In a footnote to this relatively brief opinion, the panel distinguished the Supreme Court’s February 26 decision in Clapper v. Amnesty
International USA : "Unlike in Clapper, Plaintiffs’ fear of
enforcement here is actual and well-founded and does not involve a 'highly attenuated chain of possibilities.' "

Thus, the question of whether states can impose residency requirements for those who gather signatures without violating the First Amendment is a live case or controversy in a California district court.